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Published online by Cambridge University Press: 19 October 2020
Although all constitutional issues are political in essence, ‘political constitutionalism’ as a school is specifically critical of court-centred understandings. Such a school of political constitutionalism has emerged in Chinese constitutional debates since 2008. Its rapid development has both enriched and challenged Chinese constitutional studies, but it has also left certain impacts on the political reality of China. Is this school comparable to the Western political constitutionalism tradition and how is ‘the political’ defined? By discerning three political registers from the school’s main arguments as the ‘constitutional moment’, ‘polity’ and ‘governance’, this article aims to critically examine the aims and functions of political constitutionalism in China and to argue that while constitutional reflexivity requires contestability, the political registers of this wide-ranging school in fact deny it.
1 See Jinping Xi, ‘Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era’, China Daily, 16 November 2017, available at <http://www.chinadaily.com.cn/interface/flipboard/1142846/2017-11-06/cd_34188086.html>.
2 Famously, John K. Fairbank has suggested a paradigm to study China under the perspective of imperialism that fostered western-styled nationalism and institutional modernization. See Esherick, Joseph, ‘Harvard on China: The Apologetics of Imperialism’ (1972) 4(4) Bulletin of Concerned Asian Scholars 9CrossRefGoogle Scholar at 9.
3 See Wang, Renbo, Zhong Guo Jin Dai De Xian Zheng Si Chao [Constitutional Thoughts in Modern China] (Law Press, Beijing, 2003) 28–30Google Scholar.
4 The phase of ‘political tutelage’ started from 1928 and was expected to end by 1936; however, due to the escalation of the Sino-Japanese War (1937–45), this plan was not implemented until the proposal of a new draft constitution in April 1946. However, since the KMT and the CPC were heading towards civil war, the ‘National Assembly’ ratifying this draft constitution was boycotted by the CPC and the Chinese Democratic League and it was ratified by the KMT alone. The new Constitution of the Republic in China (Zhong Hua Min Guo Xian Fa) came into effect on 25 December 1947 and remains in effect in Chinese Taiwan.
5 Xiaohong Xiao-Planes, ‘Of Constitutions and Constitutionalism: Trying to Build a New Political Order in China, 1908–1949’ in Stephanie Balme and Michael. W. Dowdle (eds) Building Constitutionalism in China, (Palgrave, New York, 2009) 49.
6 Suli Zhu, ‘Judicial Politics as State-Building’ in Balme and Dowdle (eds), Building Constitutionalism in China, 35.
7 The interim constitution refers to Zhong Guo Ren Min Zheng Zhi Xie Shang Hui Yi Gong Tong Gang Ling [The Common Program of the Chinese People’s Political Consultative Conference]. Issued by Chinese Political Consultative Council, 29 September 1949.
8 Michael W Dowdle, ‘Beyond “Judicial Power”: Courts and Constitutionalism in Modern China’ in Balme and Dowdle (eds), Building Constitutionalism in China, 209–10.
9 Zhong Hua Ren Min Gong He Guo Xian Fa Xiu Zheng An (1993) [Amendments to the Constitution of the People’s Republic of China (1993)]. Issued by National People’s Congress, 29 March 1993, art 7.
10 Zhiwei Tong, ‘China’s Constitutional Research and Teaching: A State of the Art’ in Balme and Dowdle (eds), Building Constitutionalism in China, 100.
11 Ibid.
12 See Xingzhong Yu, ‘Western Constitutional Ideas and Constitutional Discourse in China, 1978–2005’ in Balme and Dowdle (eds), Building Constitutionalism in China, 114–22.
13 Ibid 114.
14 The Qi Yuling case was initially a civil law case, in which the defendant had misused the litigant’s name to enter a college and worked for ten years after graduation until found out. The litigant sued her based on the ‘right to name’ of the General Principles of Civil Law, and ‘right to education’ of the Constitution. The trial court supported the first while declining to provide remedy for the second, according to which the Constitution should be applied only through channelling into laws. The litigant appealed. The applicant court filed an inquiry to the Supreme Court concerning the issue of application of the Constitution in this case, and the latter issued a reply and expressed the approval. After the trial, the vice president of the Supreme People’s Court (SPC), Huang Songyou, published a paper on a newspaper to compare this case to Marbury v. Madison, and named it the first case of ‘Juridification of the Constitution’ in China. However, in December 2008, the SPC officially annulled its Qi Yuling interpretation.
15 For the Sun Zhigang Incident, see Keith J. Hand, ‘Citizens Engage the Constitution: The Sun Zhigang Incident and Constitutional Review Proposals in the People’s Republic of China’ in Balme and Dowdle (eds), Building Constitutionalism in China, 222–24.
16 Weidong Ji, ‘To Take the Law as the Public: The Diversification of Society and Legal Discourse in Contemporary China’ in Balme and Dowdle (eds), Building Constitutionalism in China, 136, quoting He, Weifang, ‘Zhong Guo Si Fa Guan Li Zhi Du De Liang Ge Wen Ti’ [‘Two Problems of the Administration of Justice in China’] (1997) 6 Zhong Guo She Hui Ke Xue [Social Sciences in China] 122Google Scholar–23.
17 For the differences between the schools of Constitutional Interpretation and Normative Constitutionalism, see Lin, Laifan, Cong Xian Fa Gui Fan Dao Gui Fan Xian Fa [From Constitutional Norms to Normative Constitution] (Law Press, Beijing, 2001) 284Google Scholar; Dayuan Han, Laifan Lin and Lei Zheng, ‘Xian Fa Jie Shi Xue Yu Gui Fan Xian Fa Xue De Dui Hua’ [‘A Dialogue between the School of “Constitutional Interpretation” and the School of “Normative Constitutionalism”’] (2008) 2 Zhe Jiang Xue Kan [Zhejiang Academic Journal] 134 at 138–42.
18 For the ‘neo-proceduralism’, see Ji (n 16) 136–39.
19 Ji (n 16) 138. Jiang Shigong has suggested another three names for these different schools: those advocating ideas of ‘constitution adjudication’ and ‘normative constitution’, and that based on interpreting ‘constitutional texts’. See Jiang, Shigong, ‘Written and Unwritten Constitution: A New Approach to the Study of Constitutional Government in China’ (2010) 36(1) Modern China 12Google Scholar at 15.
20 Quoted from Peerenboom, Randall, ‘The X-Files: Past and Present Portrayals of China’s Alien “Legal System”’ (2003) 2(1) Washington University Global Studies Law Review 37Google Scholar at 61.
21 Tong (n 10) 123.
22 See Ji (n 16) 134.
23 See Chen, Duanhong, ‘Lun Xian Fa Zuo Wei Guo Jia De Gen Ben Fa Yu Gao Ji Fa’ [‘On the Constitution as the Fundamental Law and Higher Law of the State’] (2008) 4 Zhongwai Faxue [Peking University Law Journal] 485Google Scholar, reprinted in Duanhong Chen, Zhi Xian Quan Yu Gen Ben Fa [Constituent Power and Fundamental Laws] (China Legal Publishing House, Beijing, 2010) 255–332 (author’s translation).
24 See Duanhong Chen, ‘Yi Ge Zheng Zhi Xue Zhe He Yi Ge Xian Fa Xue Zhe Guan Yu Zhi Xian Quan De Dui Hua’ [‘A Dialogue about Constituent Power Between a Political Theorist and a Constitutional Scholar’] in Chen, Constituent Power and Fundamental Laws, 21.
25 Gao, Quanxi, Zheng Zhi Xian Fa Xue Gang Yao [An Outline of Political Constitutionalism] (Central Compilation and Translation Press, Beijing, 2014) 4Google Scholar (author’s translation).
26 See Gao, Quanxi et al., ‘Wen Ming, Xian Fa Yu Xin Shi Jie Zhu Yi’ [‘Culture, Constitution and New Cosmopolitanism’] (2015) 2 Su Zhou Da Xue Xue Bao (Fa Xue Ban) [Journal of Soochow University (Law Edition)] 1–42Google Scholar; Quanxi Gao, ‘Zheng Zhi Jie Gou Yu Xian Zhi Zhuan Xing’ [‘Political Structure and Constitutional Transition’] (2014) 1 Su Zhou Da Xue Xue Bao (She Hui Ke Xue Ban) [Journal of Soochow University (Philosophy and Social Sciences Edition)] 1–27; Quanxi Gao et al., ‘Shi Jie Li Shi De Zhong Guo Shi Ke’ [‘The Chinese Moment in the World History’] (2013) 2 Kai Fang Shi Dai [Open Times] 5–69.
27 Zhai, Xiaobo, Lun Wo Guo Xian Fa De Shi Shi Zhi Du [On the Mechanisms to Implement Our Constitution] (China Legal Publishing House, Beijing, 2009) 1Google Scholar.
28 Quan Guo Ren Min Dai Biao Da Hui Chang Wu Wei Yuan Hui Guan Yu Fa Lü Jie Shi Gong Zuo De Jue Yi [Resolution of the Standing Committee of the National People’s Congress Providing an Improved Interpretation of the Law]. Issued by the Standing Committee of the National people’s Congress, 10 June 1981.
29 See, for example, Zui Gao Ren Min Fa Yuan Guan Yu Zai Xing Shi Pan Jue Zhong Bu Yi Yuan Yin Xian Fa Zuo Lun Zui Ke Xing De Yi Ju De Fu Han [Reply of the Supreme People’s Court on Not Citing the Constitution as the Basis for Determining Guilt or Sentences in Criminal Judgments]. Issued by the Supreme People’s Court, 30 July 1955); Zui Gao Ren Min Fa Yuan Guan Yu Ren Min Fa Yuan Zhi Zuo Fa Lü Wen Shu Ru He Yin Yong Fa Lü Gui Fan Xing Wen Jian De Pi Fu [Reply Concerning How the People’s Courts are to Cite Legally Normative Documents When Producing Legal Documents]. Issued by the Supreme People’s Court, 28 October 1986; Zui Gao Ren Min Fa Yuan Guan Yu Yin Fa ‘Ren Min Fa Yuan Min Shi Cai Pan Wen Shu Zhi Zuo Gui Fan’ ‘Min Shi Su Song Wen Shu Yang Shi’ De Tong Zhi [Notice of the Supreme People’s Court on Issuing the Specifications for Preparing Civil Judgments by the People’s Courts and the Style of Civil Litigation Documents]. Issued by the Supreme People’s Court, 28 June 2016, effective 1 August 2016.
30 Tong (n 10) 106.
31 Li Fa Fa (2015 Xiu Zheng) [Law on Legislation of the People’s Republic of China (2015 Amendment)], arts 98 and 99, adopted by the National People’s Congress, 15 March 2015.
32 Zhai (n 27) 60.
33 Ibid 60–61.
34 Ibid 62–63.
35 Ibid 17 (author’s translation).
36 Ibid 64 and 67 (author’s translation).
37 Ibid 64 and 66 (author’s translation).
38 HLA Hart, The Concept of Law (2nd edn, Oxford University Press, Oxford, 1961) 101Google Scholar.
39 Ibid 101 (emphasis added).
40 Ibid 106.
41 Ibid 110.
42 Ibid 108.
43 See Schmitt, Carl, Constitutional Theory, trans. Jaffrey Seitzer (Duke University Press, Durham, NC, 2008) 110Google Scholar.
44 Adam Tomkins, ‘What’s Left of the Political Constitution?’ (2013) 14(12) German Law Journal (Special Issue) 2275 at 2276.
45 Ibid 2285.
46 Chen, ‘Ren Min Bi Dei Chu Chang’ [‘The People Must Be Present’] in Chen, Constituent Power and Fundamental Laws, 46–110 (author’s translation).
47 See Sieyès, Emmanuel Joseph, Political Writings, edited by Michael Sonenscher (Hackett, Indianapolis, IN, 2003) 134–35Google Scholar.
48 Chen, ‘Ren Min Ji Bu Chu Chang Ye Bu Que Xi’ [‘The People Are Neither Present Nor Absent’] in Chen, Constituent Power and Fundamental Laws, 111–82 (author’s translation).
49 Larry Catá Backer, ‘The Party as Polity, The Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism’ (2009) 5 Penn State Legal Studies Research Papers 106, available at <http://ssrn.com/abstract=1325792>.
50 Larry Cata Backer, ‘Toward a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong’s Constitutionalism’ (2014) 40(2) Modern China (Special Issue) 168 at 171.
51 Gao (n 25) 29.
52 Quanxi Gao, ‘Lüe Lun Dang Dai Zhong Guo Fa Li Xue De Ji Ge Ji Ben Wen Ti’ [‘A Brief Discussion on Several Basic Questions of Contemporary Chinese Jurisprudence’] (2010) 6 Huan Qiu Fa Lü Ping Lun [Global Law Review] 5 at 9.
53 Gao (n 25) 10.
54 Ibid 218 (author’s translation).
55 Ibid 4 (author’s translation).
56 Ibid 28 (author’s translation).
57 Ibid 144.
58 Ibid 154. See also Gao, Quanxi, ‘Lun “Gong Min”: Ji Yu Zheng Zhi Xian Fa Xue De Shi Ye’ [‘On “Citizenship”: In a Perspective of Political Constitutionalism’] (2014) 5 Fa Xue Ping Lun [Law Review] 25Google Scholar at 29.
59 Gao (n 25) 157 (author’s translation).
60 Quanxi Gao, Li Xian Shi Ke: Lun Qing Di Xun Wei Zhao Shu [Constitutional Moment: On the Abdication of the Qing Emperor] (Guangxi Normal University Press, Guilin, 2011) 148.
61 Quanxi Gao, ‘Ge Ming, Gai Ge Yu Xian Zhi: “Ba Er Xian Fa” Ji Qi Yan Jin Luo Ji – Yi Zhong Zheng Zhi Xian Fa Xue De Jie Du’ [‘Revolution, Reform and Constitutionalism: “The 1982 Constitution” and Its Logic of Evolution Interpreted in a Perspective of Political Constitutionalism’] (2012) 5 Zhong Wai Fa Xue [Peking University Law Journal] 907 at 907.
62 Gao (n 25) 190.
63 Feilong Tian, ‘Zhong Guo Xian Fa Xue Li Lun Liu Pai De Xing Cheng’ [‘The Formation of Chinese Constitution Theory School’] (2009) 0 Shandong Da Xue Fa Lü Ping Lun [Shandong University Legal Review] 54 at 61–71.
64 Feilong Tian, ‘Zhu Quan, Zhi Xian Quan Yu Zhong Guo Xian Fa De Gen Ben Fa Jie Gou – Dui Chen Duanhong Zheng Zhi Xian Fa Xue Si Xiang De Yi Ge Jie Du’ [‘Sovereignty, Constituent Power and Fundamental Laws in Chinese Constitutional Structure: An Interpretation of Chen Duanhong’s Political Constitutionalism’] (2014) 4 Zhong Guo Fa Lü Ping Lun [China Law Review] 178 at 186.
65 Backer (n 50) 174.
66 Jiang, Shigong, ‘How to Explore the Chinese Path to Constitutionalism? A Response to Larry Catá Backer’ (2014) 40(2) Modern ChinaGoogle Scholar (Special Issues) 196 at 199.
67 Shigong Jiang, ‘Mai Xiang Li Fa Zhe De Fa Li Xue – Fa Lü Yi Zhi Bei Jing Xia Dui Dang Dai Fa Li Xue De Fan Si’ [‘Towards a Jurisprudence of the Legislator: A Reflection of Contemporary Jurisprudence in the Context of Legal Transplantation’] (2005) 1 Zhong Guo She Hui Ke Xue [Social Sciences in China] 109 at 117 (author’s translation).
68 Jiang (n 19) 19.
69 Ibid 19, quoting Wheare, KC, Modern Constitutions (Oxford University Press, Oxford, 1951) 20Google Scholar.
70 Jiang (n 67) 109 (author’s translation).
71 Ibid 118 (author’s translation).
72 Ibid 120 (author’s translation).
73 See Jiang, Shigong, Zhong Guo Xiang Gang: Zheng Zhi Yu Wen Hua De Shi Ye [Chinese Hong Kong: In Political and Cultural Perspectives] (SDX Joint Publishing Company, Beijing, 2014) 20Google Scholar.
74 Jiang (n 19) 15.
75 Ibid.
76 Shigong Jiang, ‘Wen Hua, Gong Neng Yu Zhi Li – Zhong Guo Tiao Jie Zhi Du Yan Jiu De San Ge Fan Shi’ [‘Culture, Function and Governance: Three Paradigms of Conducting Research into Chinese Mediation System’] (2003) 2 Qing Hua Fa Xue [Tsinghua Law Journal] 146 at 156.
77 Ibid 153.
78 Ibid 156.
79 Ibid 153 (author’s translation).
80 Ibid 156 (author’s translation).
81 In November 2017, Professor Zhu Suli published his book titled Da Guo Xian Zhi: Li Shi Zhong Guo De Zhi Du Gou Cheng [Constitution of the Great Powers: Institutional Configurations of China in History]. This book views ‘family’ instead of individual citizens as the basic unit for organizing the Chinese-styled ‘governance’ model, which is taken as equivalent to the Western-styled ‘constitutionalism’. The publication of this book also indicates that the constitutional question gradually shifted from the periphery to the centre of Zhu’s research.
82 See Sida Liu, ‘Mei Guo “Fa Lü Yu She Hui Yun Dong” De Xing Qi Yu Pi Pan: Jian Yi Zhong Guo She Ke Fa Xue De Wei Lai Zou Xiang’ [‘The Rise and Critique of the “Law and Society Movement” in the United States: On the Future Directions of Law and Social Sciences in China’] (2016) 1 Jiao Da Fa Xue [SJTU Law Review] 20.
83 Goldoni, Marco and McCorkindale, Chris, ‘Three Waves of Political Constitutionalism’ (2019) 30(1) King’s Law Journal 74CrossRefGoogle Scholar.
84 Ibid 94–95.
85 As Zhai puts it, claims of ‘juridification-of-constitution’ are closely related to a conception of democracy as ‘aggregated wills (Jia Zong Shi Min Zhu)’, which is an ideology typical of the capitalist consumer society. See Zhai (n 27) 105–06 (author’s translation).
86 Dieter Grimm, ‘The Achievement of Constitutionalism and its Prospects in a Changed World’ in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism? (Oxford University Press, Oxford, 2010) 9 (emphasis added).
87 Ibid 20.
88 Ibid 9.
89 Marco Goldoni and Christopher McCorkindale, ‘A Note from the Editors: The State of the Political Constitution’ (2013) 14 German Law Journal (Special Issue) 2103 at 2104.
90 Martin Loughlin, ‘The Concept of Constituent Power’ (2014) 13 European Journal of Political Theory 218 at 230.
91 Ibid 229.
92 Ibid 228.
93 Ibid 228.
94 Miguel Poiares Maduro, ‘Europe and the Constitution: What if This Is as Good as It Gets?’ in JHH Weiler and M Wind (eds), European Constitutionalism beyond the State (Cambridge University Press, Cambridge, 2003) 95.
95 Neil Walker, Cormac Mac Amhlaigh and Claudio Michelon, ‘Law, Polity and the Legality of Statehood: An Introduction’ (2018) 16 International Journal of Constitutional Law 1148 at 1150.
96 Ibid 1148–49, quoting YH Ferguson and RW Mansbach, Remapping Global Politics: History’s Revenge and Future Shock (Cambridge University Press, Cambridge, 2004) 24.
97 Kaarlo Tuori, ‘Whose Voluntas, What Ratio? Law in the State Tradition’ (2018) 16 International Journal of Constitutional Law 1164 at 1168.
98 Ulrich K Preuss, ‘Disconnecting Constitutions from Statehood: Is Global Constitutionalism a Viable Concept?’ in Dobner and Loughlin (eds), The Twilight of Constitutionalism?, 33.
99 Ibid 34.
100 Neil Walker, ‘Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship’ (2010) 39 Rechtsfilosofie & Rechtstheorie 206 at 229.
101 Neil Walker, ‘Europe’s Constitutional Momentum and the Search for Polity Legitimacy’ (2005) 3 International Journal of Constitutional Law 211 at 212.
102 Lefort, Claude, Democracy and Political Theory, translated by David Macey (Polity Press, Cambridge, 1991) 225Google Scholar.
103 The three traditions are Confucianism, Mao’s tradition and Deng’s tradition. See Yang Gan, ‘Xin Shi Dai De “Tong San Tong” – San Zhong Chuan Tong De Rong Hui Yu Zhong Hua Wen Ming De Fu Xing’ [‘“Correlating Three Traditions” in a New Era: Configuration of Three Traditions and Rejuvenation of Chinese Civilization’] (2005) 7 Shu Cheng [Book Town] 33 at 39 (author’s translation).
104 Brian Z Tamanaha, ‘The Primacy of Society and the Failures of Law and Development’ (2011) 44 Cornell International Law Journal 209 at 214.
105 Nico Krisch, ‘Law and Polity: Contingency, Fiction, Loss’ (2018) 16 International Journal of Constitutional Law 1223 at 1226.
106 Ibid 1227–28.
107 Ibid 1231.
108 Krisch, Nico, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press, Oxford, 2010) 231CrossRefGoogle Scholar.
109 Ibid 230.
110 See Krisch (n 105) 1230.
111 Foucault, Michel, The Birth of Biopolitics: Lectures at the College De France 1978–79 (Palgrave Macmillan, Basingstoke, 2008) 62Google Scholar.
112 Ibid 28.
113 Chris Thornhill, ‘Contemporary Constitutionalism and the Dialectic of Constituent Power’ (2012) 1 Global Constitutionalism 369 at 375.
114 Schmitt (n 43) 128.
115 Ibid 110.
116 Emilios Christodoulidis, ‘Against Substitution: The Constitutional Thinking of Dissensus’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, Oxford, 2007) 201.
117 Rancière, Jacques, ‘Ten Theses on Politics’ (2001) 5(3) Theory & EventCrossRefGoogle Scholar, Thesis 1.
118 Ibid Thesis 2.
119 Ibid Thesis 7.
120 Ibid Thesis 7.
121 Archi-politics refers to ‘a form of communitarian rule that subordinates politics by assigning agents to their proper part within the whole’, while para-politics is ‘the attempt to reduce political antagonism to mere competition, negotiation, exercise of an agonic procedure’. See Andrew Schaap, ‘Hannah Arendt and the Philosophical Repression of Politics’ in Jacques Rancière and the Contemporary Scene: The Philosophy of Radical Equality, edited by Jean-Philippe Deranty and Alison Ross (Continuum, London, 2012) 151–59.
122 Rancière (n 117) Thesis 8 (emphasis added).
123 Ibid Thesis 1 (emphasis added).